IN THE CASE OF:
BOARD DATE: 13 August 2008
DOCKET NUMBER: AR20080009877
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, that his DD Form 214 (Report of Separation from Active Duty) with the period ending 20 October 1977 be corrected show an honorable discharge.
2. The applicant states that he went before the "Army Board" (Army Discharge Review Board) and had his discharge upgraded to honorable in San Francisco, California.
3. The applicant provides his DD Form 214.
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicants failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 31 January 1977 for a 3 year term of service. He successfully completed basic training and advanced individual training. He was awarded military occupational specialty 11E (Armor Crewman).
3. Evidence of record shows that the applicant was absent without leave (AWOL) for the period 22 August 1977 through 27 September 1977.
4. The applicant's court-martial charge sheet is not available.
5. The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process. However, his DD Form
214 shows that he was discharged on 20 October 1977 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) by reason of in lieu of trial by court-martial with an undesirable discharge and service characterized as under other than honorable conditions. The applicant completed 7 months and 13 days of creditable active service of his 3 year term of service with 37 days of lost time due to being AWOL.
6. The applicant's records do not contain nor does the Army Discharge Review Board data base show proceedings for any type of discharge upgrade.
7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he went before the Army Discharge Review Board in San Francisco, California and had his discharge upgraded to honorable. However, there is no evidence in his military records and the applicant has not provided evidence that shows his under other than honorable conditions discharge was upgraded by the Army Discharge Review Board to honorable.
2. In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulations and without procedural errors that would jeopardize his rights. Therefore, it is concluded that the characterization of the applicants discharge was proper and equitable.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__xx____ __xx____ __xx____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
_______ xxxx_______ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont) AR20080009877
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